Court File and Parties
CITATION: Villa v. Association of Professional Engineers of Ontario, 2022 ONSC 6104
DIVISIONAL COURT FILE NO.: DC-520/19
DATE: 20221031
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Warkentin, RSJ, Sachs and Davies JJ.
BETWEEN:
Renzo Villa
Appellant
– and –
Association of Professional Engineers of Ontario
Respondent
Salvatore Guerriero, for the Appellant
Andrew Faith and Matthew Howe, for the Respondent
HEARD at Toronto by videoconference: May 25, 2022
REASONS FOR DECISION
DAVIES J.
A. Overview
[1] Renzo Villa is a professional engineer licensed by the Association of Professional Engineers of Ontario (“PEO”). In 2003, Mr. Villa was hired to work for PEO as an investigator. Before joining PEO, Mr. Villa ran his own engineering firm as a sole practitioner. Mr. Villa was terminated with cause on October 25, 2013 for breaching PEO’s conflict of interest policy and for lying about engaging in engineering work outside of his employment with PEO.
[2] In 2015, PEO commenced disciplinary proceedings against Mr. Villa. PEO alleged three counts of professional misconduct. First, PEO alleged that Mr. Villa continued to provide professional engineering services to the public in breach of PEO’s conflict of interest policy and in breach of a commitment he made when he was hired by PEO not to do so without approval from PEO. Second, PEO alleged that Mr. Villa had provided professional engineering services to the public without a certificate of authorization. Finally, PEO alleged that Mr. Villa had provided professional engineering services to the public during work hours or while on sick leave from PEO.
[3] The Discipline Committee found Mr. Villa guilty of two counts of professional misconduct. The Discipline Committee found that Mr. Villa breached the Professional Engineers Act, R.S.O 1990, c. P.28 (“the Act”), by providing professional engineering services to the public without a certificate of authorization. The Discipline Committee also found that Mr. Villa provided professional services while employed by PEO in violation of an agreement not to do so. The Discipline Committee found that the allegation that Mr. Villa provided professional services to the public during his work hours or while on sick leave was an employment matter between PEO and Mr. Villa, not a disciplinary matter.
[4] In a separate decision, the Discipline Committee suspended Mr. Villa’s licence to practise for four months. The Discipline Committee ordered Mr. Villa to successfully complete the Professional Practice Examination. The Discipline Committee ordered Mr. Villa to cease offering or providing professional engineering services to the public through any business name that is not registered with PEO as the holder of a certificate of authorization. Finally, Mr. Villa was ordered to pay $15,000 in costs.
[5] Mr. Villa now appeals the liability decision of the Discipline Committee.[^1] Mr. Villa advances five grounds of appeal:
a. The Discipline Committee erred in finding that he did not hold a Certificate of Authorization at the material times;
b. The Discipline Committee erred in finding that he needed a Certificate of Authorization to provide professional engineering services to the public;
c. The Discipline Committee erred in finding that PEO had a conflict of interest policy that he breached;
d. The Discipline Committee breached his right to a fair hearing; and
e. PEO’s conduct during the hearing amounted to an abuse of process.
[6] By way of summary, I find the Discipline Committee made no error in finding that Mr. Villa provided professional engineering services to the public without a certificate of authorization. That was a factual finding that was open to the Discipline Committee on the evidence. I find the Discipline Committee was correct that Mr. Villa required a Certificate of Authorization to provide professional engineering services to the public. The Discipline Committee did not rely on the PEO conflict of interest policy in its decision. Rather, it found that Mr. Villa breached a verbal agreement not to do outside work while employed by PEO. The Discipline Committee made no error in reaching that conclusion. Finally, Mr. Villa has not established that the hearing was unfair or an abuse of process.
[7] Mr. Villa’s appeal is, therefore, dismissed.
B. Standard of Review
[8] Mr. Villa has a statutory right to appeal the decision of the Discipline Committee on a question of law, or a question of fact or a question of mixed fact and law: Professional Engineers Act, s. 31. As a result, the appellate standards of review apply: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653, at para. 37. Questions of law, including questions of statutory interpretation, are subject to a correctness standard of review. Questions of fact are subject to the palpable and overriding error standard of review. Questions of mixed fact and law are also subject to the palpable and overriding error standard of review unless a legal principle can be easily extricated from the legal issues in which case the legal issue is subject to a correctness standard of review: Association of Professional Engineers of Ontario v. Rew, 2020 ONSC 6018 at para. 51.
C. Provision of Services to the Public without a Certificate of Authorization
[9] PEO alleged that Mr. Villa engaged in professional misconduct because he provided professional engineering services to the public without a certificate of authorization contrary to s. 12(2) of the Act. With some exceptions, s. 12(2) of the Act prohibits any person from offering professional engineering services to the public or engaging in the business of providing professional engineering services to the public except “under and in accordance with a certificate of authorization.”
[10] Mr. Villa testified at his hearing and admitted that between 2007 and 2013 he provided professional engineering services to the public while he was employed at PEO. The issues before the Discipline Committee were whether Mr. Villa had a certificate of authorization when he rendered those services to the public or was required to have a certificate of authorization. Mr. Villa argued he had a certificate of authorization when he rendered professional engineering services to the public between 2007 and 2013. In the alternative, Mr. Villa argued he was exempt from the requirement to have a certificate of authorization under section 12(3) of the Act. The Discipline Committee rejected Mr. Villa’s evidence and arguments on these issues. The Discipline Committee found that Mr. Villa had provided professional engineering services without a certificate of authorization. The Discipline Committee also found that Mr. Villa was not exempt from the requirement for a certificate of authorization.
[11] Mr. Villa appeals both those findings.
a. Did the Discipline Committee err in finding that the services Mr. Villa provided were not provided under a certificate of authorization?
[12] Mr. Villa admitted he provided professional engineering services to the public between 2007 and 2013 but argued he provided those services to the public under Certificate of Authorization #10992347, which was issued to “Renzo Villa Associates.” The Discipline Committee rejected this argument. The Discipline Committee found that Mr. Villa relinquished his certificate of authorization to another professional engineer, Giovanni Crimi, in 2006. The Discipline Committee also found that once the transfer occurred, Mr. Villa had no rights under the certificate of authorization. Finally, the Discipline Committee found that the work done by Mr. Villa after 2006 was not performed under the certificate of authorization now held by Mr. Crimi. These are factual findings that are entitled to deference.
[13] We can only overturn a factual finding if Mr. Villa demonstrates, on a balance of probabilities, that the Discipline Committee committed palpable and overriding error. A “palpable” error is one that is obvious. An “overriding” error is one that goes to the very core of the outcome of the case: South Yukon Forest Corp. v. R., 2012 FCA 165, 4 B.L.R. (5th) 31, at para. 46.
[14] The Discipline Committee made no palpable and overriding error in finding that Mr. Villa did not have a certificate of authorization and Mr. Crimi did not supervise his professional engineering services once the certificate of authorization was transferred. In fact, the evidence supports the Discipline Committee’s findings. There is no basis to overturn these findings.
[15] Mr. Villa became a member of the PEO in 1980, under the old regulatory regime. At that time, engineers did not require a licence to practise. The Professional Engineers Act was amended in 1984 and a licensing requirement was introduced. The 1984 amendments contained a transition provision. Anyone who was a “member” of the PEO before the amendments became a member and a licensee after the amendments. Mr. Villa, therefore, became a licensee of the PEO in 1984 and has been ever since.
[16] Prior to 1984, only partnerships, associations and corporations required a certificate of authorization to engage in the practice of professional engineering. However, the 1984 amendments introduced a distinction between the practice of professional engineering and offering professional services to the public. Since 1984, the Act has prohibited any person from “offering to the public or engaging in the business of providing to the public services that are within the practice of professional engineering” without a certificate of authorization. A certificate of authorization can now be issued to “a natural person, a partnership or a corporation”: Professional Engineers Act, s. 15. A licensed professional engineer is required to personally supervise the engineering services provided by the holder of a certificate of authorization: Professional Engineers Act, s. 17(1).
[17] Certificate of Authorization #10992347 was issued to “Renzo Villa Associates”. From 1993 to 2005, Renzo Villa Associates only had one professional engineer on staff – Mr. Villa – and he assumed responsibility for all the professional engineering services provided by his firm. From September 1, 2005 to August 31, 2006, there were two professional engineers listed on the registry for Certificate of Authorization #10992347 - Mr. Villa and Mr. Crimi. As of September 1, 2006, Mr. Crimi was the only professional engineer listed as being employed by Renzo Villa Associates and he assumed responsibility for the work done under Certificate of Authorization #10992347.
[18] Mr. Crimi sent a letter to PEO dated February 12, 2007 which said, “This is to confirm that I, Giovanni Crimi, am continuing the responsibilities for the Certificate of Authorization #10992347.” Mr. Villa sent Mr. Crimi a letter the same day, February 12, 2007, which read as follows:
As requested, I am supplying you with this letter to confirm that I am relinquishing all responsibility and rights to the Certificate of Authorization #10992347 – Renzo Villa Associates, to Mr. Giovanni Crimi, P. Eng.
[19] Mr. Crimi testified that he was the only engineer directing and supervising work under Certificate of Authorization #10992347 as of September 1, 2006. He testified that he assumed responsibility for Certificate of Authorization #10992347 at Mr. Villa’s request. He testified that Mr. Villa wanted to keep Renzo Villa Associates active after he started working for PEO but could not be listed on the Certificate of Authorization.
[20] Mr. Crimi testified that Mr. Villa would send him projects to review. Mr. Crimi would provide the design and give the drawings to Mr. Villa to sign and seal. Mr. Crimi admitted he did not know if Mr. Villa had sealed the documents and drawings he reviewed. Mr. Crimi also testified that he would accept responsibility for any professional engineering services Mr. Villa provided, whether he knew about them or not.
[21] The Discipline Committee heard evidence that the invoices, drawings and correspondence related to the services Mr. Villa provided after 2007 made no reference to Certificate of Authorization #10992347 or to Renzo Villa Associates. Mr. Villa used other business names on his correspondence, drawing and invoices after 2007.
[22] Based on this evidence, it was open to the Discipline Committee to find that Mr. Villa did not have a certificate of authorization after he relinquished his responsibilities and rights to Certificate of Authorization #10992347. It was also open to the Discipline Committee to find that Mr. Crimi did not personally supervise Mr. Villa’s work after Certificate of Authorization #10992347 was transferred to him and, as a result, the professional engineering services Mr. Villa provided after September 1, 2006 were not provided under a certificate of authorization. The Discipline Committee made no palpable and overriding error in making those findings.
b. A Certificate of Authorization is Required to Provide Professional Engineering Services to the Public
[23] In the alternative, Mr. Villa argued before the Discipline Committee that as licensed professional engineer he did not need a certificate of authorization to provide professional services to members of the public. Mr. Villa argued that licensed engineers who work alone are exempt from the requirement to have a certificate of authorization under s. 12(3)(b) of the Act which states that the requirement to have a certificate of authorization does not apply “to prevent a person from doing an act that is within the practice of professional engineering where a professional engineer … assumes responsibility for the services.” He argues that as a sole practitioner, he could assume responsibility for his own work and was, therefore, exempt from the need for a certificate of authorization.
[24] The Discipline Committee rejected Mr. Villa’s argument. The Discipline Committee found that the exemption in s. 12(3)(b) of the Act only applies to non-engineers who perform work that falls within the scope of practice of professional engineering under the direction and supervision of a professional engineer.
[25] Mr. Villa argues that the Discipline Committee erred in finding that he required both a licence and a certificate of authorization to provide professional engineering services to the public. This ground of appeal raises a question of law – the proper interpretation of s. 12(3)(b) of the Act. The standard of review for a question of law is correctness: was the Discipline Committee correct that a licensed engineer, working alone, requires a certificate of authorization to offer professional services to the public? The answer to that question turns on the proper interpretation of the exemption in s. 12(3)(b) of the Act.
[26] Following oral argument, we requested and received further written submissions from PEO and Mr. Villa on the proper interpretation of s. 12(3)(b) of the Act.
[27] The Discipline Committee’s decision was correct that all licensed professional engineers require a certificate of authorization to provide professional engineering services to the public. However, our reasons for this conclusion are different than the Discipline Committee’s reasons.
[28] When interpreting s. 12(3)(b) of the Act, we must consider it in the context of the Act as a whole. We must consider its grammatical and ordinary meaning. We must interpret the provision in a manner that is consistent with the scheme and object of the Act as a whole. We must also interpret s. 12(3)(b) of the Act in a manner that is consistent with the intent of the Legislature: Re Rizzo and Rizzo Shoes Ltd., 1998 837 (SCC), [1998] 1 S.C.R. 27, at para. 21.
[29] To put the specific exemption in s. 12(3)(b) in context, it is important to start with the language of s. 12 of the Act, which states as follows:
12 (1) No person shall engage in the practice of professional engineering or hold himself, herself or itself out as engaging in the practice of professional engineering unless the person is the holder of a licence, a temporary licence, a provisional licence or a limited licence.
(2) No person shall offer to the public or engage in the business of providing to the public services that are within the practice of professional engineering except under and in accordance with a certificate of authorization.
(3) Subsections (1) and (2) do not apply to prevent a person,
(b) from doing an act that is within the practice of professional engineering where a professional engineer or limited licence holder assumes responsibility for the services within the practice of professional engineering to which the act is related.
[30] Mr. Villa argues that the reference to the “practice of professional engineering” in s. 12(3)(b) subsumes the right to engage in the business of providing services to the public that are within the scope of practice for a professional engineer. He argues that it would be absurd to prohibit licensed professional engineers from offering services within their scope of practice to the public.
[31] PEO argues the Act creates different requirements for engaging in the practice of engineering and engaging in the business of offering engineering services to the public. PEO argues that the Act deliberately demands more stringent requirements when professional engineering services are offered or provided to the public. PEO argues that Mr. Villa’s interpretation ignores this legislative distinction. PEO argues it would be absurd and inconsistent with the purpose of the Act to exempt licensed engineers from regulatory requirements the Legislature put in place to protect the public when engaging the services of a professional engineer.
[32] Section 12(1) of the Act creates a licensing requirement to engage in the practice of professional engineering. The “practice of professional engineering” is defined in s. 1 of the Act as “any act of planning, designing, composing, evaluating, advising, reporting, directing or supervising that requires the application of engineering principles and concerns the safeguarding of life, health, property, economic interests, the public welfare or the environment, or the managing of any such act.” The definition of the practice of professional engineering does not include providing or selling services to the public.
[33] Section 14 of the Act sets out the criteria for obtaining a licence and makes it clear that a licence can only be issued to “a natural person.” A partnership or firm cannot hold a licence.
[34] Section 12(2) creates the requirement to have a certificate of authorization to offer to the public or engage in the business of providing to the public services that are within the practice of professional engineering. A “certificate of authorization” is defined in s. 1 of the Act as a certificate to “engage in the business of providing services that are within the practice of professional engineering.” Certificates of authorization can be issued to a natural person as well as a partnership or corporation: Professional Engineers Act, s. 15.
[35] I agree with PEO that the Act draws a clear distinction between doing acts within the scope of practice of a professional engineer and offering or providing those services to the public. A person can engage in the practice of professional engineering without offering or providing professional engineering services to the public. Professional engineers work on all sorts of projects and in all sorts of settings that do not involve providing professional engineering services (for free or for a fee) to the public. When practising in those environments, a professional engineer only requires a licence. It is when members of the public are going to rely on the services of a professional engineer that the additional requirement for a certificate of authorization is triggered.
[36] The remaining question, then, is who or what is exempted under s. 12(3)(b).
[37] Section 12(3)(b) creates an exemption for people who are engaged in “an act that is within the practice of professional engineering” so long as a licensed professional engineer assumes responsibility for their work. Absent the exemption on s. 12(3)(b), people who perform an act that falls within the practice of professional engineering as defined in s. 1 of the Act (planning, designing, composing, evaluating, advising, reporting, directing or supervising that requires the application of engineering principles and concerns the safeguarding of life, health, property, economic interests, the public welfare or the environment) only require a licence. Those people do not require a certificate of authorization.
[38] Section 12(3)(b) is designed to allow anyone to perform tasks that fall within the scope of practice of a professional engineer without a licence if they are directly supervised by a licensed engineer. In other words, s. 12(3)(b) only impacts the licensing requirement in s. 12(1). Section 12(3)(b) has no application to people who offer or provide professional engineering services to the public. As a result, s. 12(3)(b) does not alter in any way the requirement in s. 12(2) for people, like Mr. Villa, who offer professional engineering services to the public or engage in the business of offering professional engineering services to the public.
[39] The reason the opening language of s. 12(3) includes a reference to both the licensing requirement under s. 12(1) and the requirement for a certificate of authorization under s. 12(2) is because some of the exempted activities in the other subsections require both a licence and a certificate of authorization. The reference to both licences and certificates of authorization in the opening language of s. 12(3) must be interpreted to mean that a person engaged in any of the enumerated activities is exempted from whatever regulatory requirement that would otherwise apply to their activity.
[40] I also agree with the PEO that interpreting s. 12(3)(b) in the manner Mr. Villa suggests would produce an absurd result that is inconsistent with the overall scheme of the Act.
[41] The holder of the certificate of authorization must have professional liability insurance to offer or provide professional engineering services to the public: Professional Engineers Act, ss. 17 and 34. Licensed professional engineers (who do not offer their services to the public) are not required to have professional liability insurance.
[42] Mr. Villa’s interpretation of s. 12(3)(b) would allow licensed engineers working alone to offer or sell professional engineering services without liability insurance. That would be an absurd result. One of the purposes of the 1984 amendments to the Act was to afford consumers of professional engineering services greater protection. Allowing some professional engineers to provide services to the public without insurance is contrary to the Legislature’s intent.
[43] Based on the plain language of s. 12, read as a whole and in the context of the Act, and the Legislature’s intent, I find that the Discipline Committee was correct that s. 12(3)(b) does not exempt Mr. Villa, as a licensed professional engineer practising on his own, from the requirement to have a certificate of authorization to offer or provide professional engineering services to the public.
D. PEO Conflict of Interest Policy and Mr. Villa’s Promise to Stop Practising
[44] Mr. Villa was terminated with cause on October 25, 2013 for breaching PEO’s conflict of interest policy and lying about engaging in engineering work outside of his employment with PEO. The merits of Mr. Villa’s termination are not before this Court on this appeal.
[45] Mr. Villa argues that the Discipline Committee erred in relying on PEO’s conflict of interest policy. He argues that there was, in fact, no conflict of interest policy in existence at the relevant time. He argues that PEO fabricated evidence about a conflict of interest policy. I would not give effect to this ground of appeal.
[46] The statement of allegations that formed the basis for the charges against Mr. Villa referred to a conflict of interest policy. PEO alleged that the policy prohibited Mr. Villa from engaging in outside employment or business while employed by PEO without the prior written consent of the PEO. The statement of allegations also stated that it was a condition of Mr. Villa’s employment that he would maintain his Certificate of Authorization only for the purpose of completing existing projects.
[47] The Discipline Committee heard evidence about the conflict of interest policy. However, the Discipline Committee’s finding that Mr. Villa engaged in professional misconduct by providing professional engineering services to the public while employed by PEO was not based on a finding that Mr. Villa breached the conflict of interest policy. The Discipline Committee’s decision focussed on whether Mr. Villa agreed that he would not provide professional engineering services to the public after he completed the projects that were ongoing when he was hired. The Discipline Committee made the following findings:
The panel is satisfied that Mr. Villa’s provision of professional services to the public between 2008/2009 and 2012/2013, was contrary to his commitment – which we find proven on the evidence – to the Association not to do so and without the Association’s authorization.
[48] It was open to the Discipline Committee to find that Mr. Villa made a commitment not to provide professional services to the public. This is a factual finding that is entitled to deference. Mr. Villa has not established the Discipline Committee made a palpable and overriding error in making that factual finding.
[49] In his testimony, Mr. Villa admitted there were discussions when he was hired by PEO about an undertaking not to take on any new work while he was employed by the PEO once his existing files were completed or transferred. However, he argues he never signed the undertaking requested in his offer of employment and never agreed not to take on outside work. The Discipline Committee rejected his evidence and argument on this point.
[50] The Discipline Committee found as a fact that “by February 2007, Mr. Villa had promised the Association that he would not provide professional services to the public.” The Discipline Committee made no palpable and overriding error in reaching this conclusion. It was open to the Discipline Committee to make that finding based on the evidence it heard.
[51] On November 3, 2003, PEO sent Mr. Villa an offer letter setting out the conditions of his employment. The letter states, “As agreed, you will maintain your [Certificate of Authorization] until files are completed and you will provide us with an undertaking.” Mr. Villa signed the offer on November 4, 2003.
[52] On Mr. Villa’s first day of work at the PEO, he sent an email to the Deputy Registrar which stated as follows:
As per our discussion I herein provide the requested undertaking.
I agree to maintain my Certificate of Authorization for pre-existing projects and responsibilities for active continuing forensic file. Any responsibilities that can viably be transferred to other licensed professional will be transferred at the earliest date.
[53] Mr. Villa’s manager asked Mr. Villa to sign a more specific undertaking that would include a list of ongoing forensic matters and a commitment by Mr. Villa to update PEO on the status of the ongoing files on a quarterly basis. It was this more specific undertaking that Mr. Villa never signed. The Discipline Committee considered the fact that Mr. Villa never signed the undertaking but found that was not dispositive of the issue of whether he made a commitment not to take on new private work while employed by PEO.
[54] The Discipline Committee also considered the fact that Mr. Villa’s name was removed from the Certificate of Authorization #10992347 (Renzo Villa Associates) as of September 1, 2006 and on February 12, 2007 Mr. Crimi wrote to PEO to confirm he had assumed responsibility for the Renzo Villa Associates’ Certificate of Authorization. Mr. Villa also sent a letter to Mr. Crimi on February 12, 2007 relinquishing all rights and responsibilities under Certificate of Authorization #10992347.
[55] The PEO called Mr. Villa’s manager, Bruce Matthews, as a reply witness. Mr. Matthews testified that in 2006 he told all the PEO investigators, including Mr. Villa, that it was inappropriate for them to continue to provide professional engineering services to the public while employed by PEO. Mr. Matthews testified that he asked Mr. Villa to surrender his certificate of authorization and Mr. Villa agreed. Mr. Matthews testified that he later reviewed the registration records for Certificate of Authorization #10992347 and confirmed it had been transferred to Mr. Crimi and Mr. Villa’s name was no longer included.
[56] The Discipline Committee made no palpable and overriding error in finding that by February 12, 2007 (when Mr. Villa sent the letter to Mr. Crimi relinquishing his rights and responsibilities for Certificate of Authorization #10992347) Mr. Villa had promised he would not provide professional engineering services to the public while employed by PEO. Mr. Villa admitted he continued to provide professional services to the public after 2007. It was, therefore, open to the Discipline Committee to find that Mr. Villa breached his agreement with PEO and engaged in professional misconduct.
E. Procedural Fairness and Abuse of Process
[57] Mr. Villa argues that the proceedings before the Discipline Committee were unfair. First, he argues the prosecution was permitted to split its case. Second, he argues the Discipline Committee was biased. Third, he argues the proceedings were brought for an improper purpose.
[58] There is no standard of review that applies to Mr. Villa’s grounds of appeal concerning procedural fairness: London v. Ayerswood Development Corp. (2002), 2002 3225 (ON CA), 167 O.A.C. 120, (C.A.), at para. 10. The question is simply whether the Discipline Committee met its duty to ensure the hearing was fair in all the circumstances: Baker v. Canada (Minister of Citizenship and Immigration), 1999 699 (SCC), [1999] 2 S.C.R. 817 at paras. 21–28. If Mr. Villa was denied a fair hearing, the decision of the Discipline Committee must be set aside even if a new hearing is not likely to result in a different decision: Cardinal v. Kent Institution, 1985 23 (SCC), [1985] 2 S.C.R. 643, at pp. 660-661.
a. The Discipline Committee’s decision to allow PEO to call reply evidence was not unfair
[59] After Mr. Villa testified, PEO sought leave to adduce two witnesses in reply – Bruce Matthews who was involved in hiring Mr. Villa and Roger Barker who was the Deputy Registrar when Mr. Villa was hired. Mr. Villa opposed PEO’s request to call reply evidence. He argued PEO was attempting to split its case. The Discipline Committee granted PEO leave to call reply evidence on several discrete points.
[60] There was nothing unfair about the Discipline Committee’s decision to allow PEO to call reply evidence.
[61] Reply evidence is not permitted to simply confirm or reinforce a party’s case in chief. PEO was required to exhaust its evidence in support of the allegations against Mr. Villa before Mr. Villa was called on to respond. Nonetheless, reply evidence is permitted to address unexpected issues that arise during the other party’s case: R. v. Krause, 1986 39 (SCC), [1986] 2 S.C.R. 466, at p. 474, Lockridge v. Director, Ministry of the Environment, 2013 ONSC 6935, 322 O.A.C. 345, at para. 14. The evidence PEO called in reply was limited to unexpected issues that arose during Mr. Villa’s case.
[62] Mr. Villa declined to be interviewed by PEO’s investigator or give a statement during its investigation. As a result, PEO did not know what Mr. Villa would say in answer to the allegations before the hearing started.
[63] Before PEO called any evidence at the hearing, it brought a motion for an order requiring Mr. Villa to produce a witness list, will-say statements for his witnesses and a copy of any documents he intended to rely on at the hearing. Mr. Villa opposed the motion. He argued that he could not provide a witness list and will-say statements until he heard the PEO witnesses and knew the case he had to meet. During his submissions on PEO’s motion, Mr. Villa simply said he denied all the allegations against him. The Discipline Committee declined to rule on PEO’s motion before the prosecution called its case. PEO, therefore, called its entire case in chief without knowing what evidence Mr. Villa might call.
[64] When PEO closed its case, Mr. Villa was granted an adjournment to prepare his case. PEO renewed its request for Mr. Villa to produce a witness list, will-say statements and documents. Mr. Villa agreed to provide a witness list and will-say statements to PEO before the hearings resumed.
[65] Mr. Villa produced vague will-say statements after PEO closed its case. Mr. Villa’s will-say statement read as follows:
Villa anticipates Renzo Villa will provide the following evidence:
Mr. Villa will response [sic] to purported PEO conflict of interest policy issue;
He will provide general allegations defence evidence;
He will provide the Certificate of Authorization of Renzo Villa Associates holder and status evidence;
He will provide general defence evidence.
[66] The will-say statement for his other witness, Rose Pirone, said she would provide evidence about the PEO conflict of interest policy and about “flex time, working hours and personal days” for new hires, including Mr. Villa. Ms. Pirone was the Director of Human Resources when Mr. Villa was hired at PEO.
[67] When Mr. Villa testified, he admitted that he provided professional engineering services to the public while employed at PEO. However, he testified he never promised to stop doing outside work. He agreed that he was asked to provide an undertaking that he would not take on outside work after his existing projects ended. But he testified he never signed an undertaking and PEO waived that condition in his employment letter.
[68] Mr. Villa repeatedly testified that he was “open and notorious” about his outside engineering work while he was employed by PEO. He testified that his manager knew he was doing outside work and providing engineering services to the public. He said, “everyone at the PEO was quite well aware of it.” He testified that he openly tried to renew his consulting engineering designation in 2006. PEO denied his request, finding that he was “not in an independent practice of professional engineering.” Nonetheless, Mr. Villa argued that the fact he applied to renew his designation is clear evidence that he openly continued his private practice while employed by PEO.
[69] Finally, Mr. Villa testified that PEO did not have a conflict of interest policy or, if such a policy existed, it was not enforced.
[70] In addition to testifying about the hiring process at PEO, Ms. Pirone testified that she hired Mr. Villa to provide professional engineering to her personally on more than one occasion while he was employed as an investigator at PEO. Ms. Pirone testified that Mr. Barker, the deputy registrar of PEO, suggested that she hire Mr. Villa for her own projects.
[71] Mr. Villa did not provide PEO disclosure of the evidence he was going to adduce. Given the content of Mr. Villa’s employment letter and the undertaking he gave, PEO could not have anticipated that Mr. Villa would deny that he had agreed not to take on new work once his existing projects were complete. PEO could not have anticipated that Mr. Villa would testify that he was “open and notorious” about his private engineering practice while employed at PEO. PEO could not have anticipated that Mr. Villa would call Ms. Pirone to say she had hired Mr. Villa privately to provide her with engineering services at Mr. Barker’s suggestion. PEO could not have anticipated that Mr. Villa would deny the existence of the conflict of interest policy.
[72] The reply evidence from Mr. Matthews and Mr. Barker responded directly to the new and unexpected factual issues Mr. Villa raised in his case. It was not unfair of the Discipline Committee to permit PEO to respond to the evidence given by Mr. Villa and Ms. Pirone that could not have been anticipated.
b. Reasonable Apprehension of Bias
[73] The duty of procedural fairness includes an obligation on the part of the Discipline Committee to ensure the panel was free from bias or a reasonable apprehension of bias: Turner v. Northview Apartment Reit, 2019 ONSC 2204 at para. 8. Nevertheless, administrative adjudicators, including the Discipline Committee, are presumed to be impartial. The burden is on Mr. Villa to show, on a balance of probabilities, that an informed person, viewing the matter realistically and practically would conclude the Discipline Committee could not decide his matter fairly. Mr. Villa must adduce cogent and compelling evidence to overcome the strong presumption of impartiality: James v. LSO, 2021 ONSC 1935 at para. 22.
[74] Mr. Villa argues there is a reasonable apprehension of bias for four reasons, none of which are persuasive, individually or collectively.
[75] First, Mr. Villa argues that members of the Discipline Committee were in a conflict of interest. He alleged, for example, that one member of the Discipline Committee was also a member of PEO’s council and would have received a briefing about Mr. Villa’s wrongful dismissal claim before the discipline hearing commenced. He alleged another member was biased because she was married to a relative of his former employment lawyer and, therefore, would have received information about his case. Mr. Villa brought several motions seeking to recuse these members from the panel. He also brought a motion to recuse the whole panel. Both Committee Members assured Mr. Villa they had not received any information about his case before the hearing commenced. The Discipline Committee made no error in finding that Mr. Villa had not established a reasonable apprehension of bias. A reasonable person, fully apprised of the circumstances, would not think the panel members were biased against Mr. Villa or unable to consider his case fairly.
[76] Second, he argues there is a reasonable apprehension of bias because members of the Discipline Committee are paid a per diem for their work on the committee. There is no merit to this argument. A reasonable observer would not conclude that the Discipline Committee members could not make a fair decision because they are paid for their time.
[77] Third, Mr. Villa argues there is a reasonable apprehension of bias because PEO failed to exercise its statutory authority to make regulations about the mechanism for appointing members to the Discipline Committee. Section 7(1)(5) of the Act gives the Council of PEO the power to make regulations “respecting the composition of the committees required by this Act, other than the Complaints Committee, the Discipline Committee and the Registration Committee, the mechanism of the appointment of members of the committees and procedures ancillary to those specified in this Act in respect of any committee.” PEO has not made regulations about the mechanism for appointing the members of the Discipline Committee. The Act allows them to make regulations, it does not require them to do so. Mr. Villa has not demonstrated how the absence of regulation in this area undermines the impartiality of the panel members or creates a reasonable apprehension of bias.
[78] Fourth, Mr. Villa argues that there was a reasonable apprehension of bias because the Discipline Committee members, who were paid for their service, did not swear an oath of office. In support of this argument, Mr. Villa relies on two decisions from the British Columbia Court of Appeal: Sekela v. Morrison, 2001 BCCA 572, 98 B.C.L.R. (3d) 308, and Doern v. Police Complaint Commissioner, 2001 BCCA 446, 92 B.C.L.R. (3d) 76. Both those cases dealt with an allegation of bias against an adjudicator appointed by the Police Complaint Commissioner to conduct a public hearing into allegations of misconduct involving the police. The issue in those cases was whether the terms of the contract the adjudicator was required to sign gave rise to a reasonable apprehension that the Police Complaint Commissioner could improperly interfere with the adjudicator’s work. The contract included a clause that required the adjudicator to follow the Commissioner’s instructions and allow the Commissioner to inspect any materials the adjudicator received. The Court found the contract violated the principles of judicial independence and gave rise to a reasonable apprehension of bias: Sekela at paras. 35–36. It was in that context, having found the contract was improper and gave rise to a reasonable apprehension of bias, that the Court held that the only promise the adjudicator should have been asked to make was an oath to truly and faithfully execute his duties. No other conditions should have been put on the adjudicator. Mr. Villa argues that these decisions stand for the proposition that paid adjudicators must take an oath of office to establish their impartiality and independence. I disagree. It was the terms of the contract in Sekela and Doern that provided cogent and compelling evidence of a reasonable apprehension of bias. It was in that context that the Court held that nothing more than an oath to uphold the office should have been required. Here, there is no basis to find a reasonable apprehension of bias. The mere fact that adjudicators are paid does not give rise to an apprehension of bias or mandate an oath of impartiality.
[79] Mr. Villa has not adduced compelling and cogent evidence to displace the presumption that the Discipline Committee was impartial.
c. Prosecutorial Misconduct and Abuse of Process
[80] Mr. Villa argues that the discipline proceeding was an abuse of process.
[81] Some of Mr. Villa’s arguments about the conduct of PEO’s counsel have already been addressed. For example, he argues that it was an abuse of process for PEO to split its case. I have already found that there was nothing improper about PEO’s request to call reply evidence to address unexpected issues that Mr. Villa raised and nothing unfair about the Discipline Committee’s decision to permit PEO to call reply evidence.
[82] In addition, he argues that PEO adduced false evidence and used the discipline process to undermine his civil claim against PEO for wrongful dismissal. The test for proving an abuse of process is a stringent one. Mr. Villa must demonstrate, on a balance of probabilities, that the conduct of the PEO prosecutor was egregious and compromised his right to a fair hearing.
[83] Mr. Villa argues that it was an abuse of process for PEO to rely on the conflict of interest policy, which he says did not exist. He argues the prosecutor adduced fabricated evidence about the existence of the policy. I would not give effect to this argument. Whether PEO had a conflict of interest policy and whether it applied to Mr. Villa was a factual issue for the Discipline Committee to decide. Mr. Villa made his position known to the Discipline Committee about the veracity of the policy documents. Mr. Villa pointed out that the policy itself required new employees to “sign a statement that they have read and understood the Conflict of Interest Policy and that they agree to comply with the policy.” Mr. Villa adduced evidence that one of PEO’s own witnesses had not signed such a statement.
[84] Like all advocates, PEO’s counsel is not permitted to adduce evidence it knows is false or misleading. There is, however, no basis to conclude that PEO’s evidence was fabricated or that PEO’s counsel knew the evidence about the conflict of interest policy was false. There was nothing improper about PEO’s counsel adducing evidence of PEO’s policy. It was for the Discipline Committee to consider the evidence, including evidence adduced by Mr. Villa, and decide whether they accepted PEO’s evidence on this or any other issue. In the end, the Discipline Committee did not make any findings about whether Mr. Villa breached the conflict of interest policy. Rather, the Discipline Committee found he breached his agreement not to take on outside work.
[85] Mr. Villa also argues PEO took disciplinary action against him for an improper purpose unrelated to its public interest mandate. Mr. Villa argues the disciplinary proceedings were designed to undermine his wrongful dismissal claim. There is no merit to this submission.
[86] There is significant overlap between the grounds cited for Mr. Villa’s dismissal and the allegations made at his disciplinary proceedings. This is not uncommon. The same conduct by a regulated professional can be grounds to dismiss an employee and grounds to discipline someone for professional misconduct (and sometimes even grounds for criminal charges). The mere fact that the same conduct gave rise to multiple proceedings does not amount to an abuse of process. Similarly, the fact that Mr. Villa was terminated from his position with PEO and subject to disciplinary proceedings for the same conduct does not give rise to an inference that PEO pursued the disciplinary proceedings for an improper purpose related to Mr. Villa’s civil claim.
[87] Throughout the proceedings and in closing submissions PEO’s Counsel focussed on its statutory mandate to protect the public and the need to protect public confidence in the profession. Counsel also objected during Mr. Villa’s examination of one witness that he was using the discipline proceeding as a means of discovery for his civil claim. PEO’s counsel expressly urged the Discipline Committee to ignore the arguments Mr. Villa had made that related to his wrongful dismissal claim that were not relevant to the disciplinary proceeding. The evidence suggests PEO’s counsel was trying to keep the issues on the wrongful dismissal and disciplinary proceedings separate and there is no basis to conclude PEO pursued the disciplinary proceedings for an improper purpose.
F. Conclusion
[88] Mr. Villa’s appeal is dismissed.
[89] I encourage the parties to agree on costs. If they are unable to agree, the parties may make written submissions on costs of no more than 5 pages double-spaced no later than November 14, 2022.
Davies J.
I agree _______________________________
Warkentin R.S.J.
I agree _______________________________
Sachs J.
Released: October 31, 2022
CITATION: Villa v. Association of Professional Engineers of Ontario, 2022 ONSC 6104
DIVISIONAL COURT FILE NO.: DC-520/19
DATE: 20221031
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Warkentin, RSJ, Sachs and Davies JJ.
BETWEEN:
Renzo Villa
Appellant
– and –
Association of Professional Engineers of Ontario
Respondent
REASONS FOR decision
Released: October 31, 2022
[^1]: Mr. Villa’s notice of appeal says he is appealing the penalty decision. Mr. Villa made no argument about the penalty decision in his factum or at the hearing of his appeal. We, therefore, conclude that Mr. Villa abandoned his appeal in respect of the penalty imposed by the Discipline Committee.